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Private Bar Fills Enforcement Void
Any void left open in the administration’s civil rights enforcement will be filled by the private class action bar, as it has done during past Republican administrations, Larkin, the plaintiffs' lawyer, told Bloomberg BNA.
“It’s always somewhat easier when you have the backing of the administration on enforcement, but when we don’t we’ve forged ahead,” she said.
The new administration could pick areas where it decides it isn’t interested in enforcing civil rights statutes, Foreman said. He gave the example of the Equal Employment Opportunity Commission.
“They could either trim the budget or pick leadership that is not interested in pursuing systemic types of relief,” he said. “It will fall back to the private counsel to pick up those cases that the EEOC doesn’t do.”
But that’s part of how civil rights enforcement is designed to work, Suzette Malveaux, professor of complex litigation and civil rights law at Catholic University Law School in Washington, told Bloomberg BNA. Private cases are an “important piece of the enforcement puzzle,” she said.
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Born of the Civil Rights Movement
Civil rights suits were a major driver behind the modern version of Rule 23, as substantially revised in 1966, Malveaux said.
The committee tasked with amending the rule was troubled by opposition to desegregation in southern states after the U.S. Supreme Court’s decision in Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954). Some judges were finding ways around the decision by, for example, limiting relief to individual students.
And some of the committee members were themselves involved in the civil rights struggle at the time, she said.
“They amended Rule 23(b)(2) with civil rights class actions in mind; that is, when an individual is seeking broad systemic injunctive relief and declaratory relief, that would apply to a swath of people as a whole, Malveaux said.
The heyday for civil rights suits was right after Rule 23 was amended, in the 1960s and 1970s. “There was a period when it was much easier to get a civil rights case certified by alleging an across-the-board violation,” she said.
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Professor Suzette M. Malveaux's Areas of Expertise
Civil Rights Law
Fair Employment Law
For additional information about our professors' areas of speciality, see the Catholic University Experts page.